Duffy v. State

• Decision Date: 07 June 1978
• Docket Number: No. 57603,57603
• Parties: Harvey Joseph DUFFY, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 197

567 S.W.2d 197

Harvey Joseph DUFFY, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 57603.

Court of Criminal Appeals of Texas,En banc.

June 7, 1978.

Lonnie W. Duke and Antonio G. Cantu, San Antonio, court appointed, for appellant.

Bill M. White, Dist. Atty., John W. Harris, Jr., Charles T. Conaway and Bennie F. Steinhauser, Jr., Asst. Dist. Attys., San Antonio, for the State.

OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for capital murder. On September 14, 1976, the jury answered affirmatively the three special issues submitted under Article 37.071, Vernon's Ann.C.C.P., and the punishment was accordingly assessed at death.

The sufficiency of the evidence to show that appellant committed murder in the course of robbery is not challenged. On January 14, 1976, the body of Louise Word, an eighty-year-old woman, was found in her house in a rural area of Bexar County. The evidence showed that she had been stabbed ten times with a knife. The front screen door of her house was bent and twisted, indicating a struggle had taken place. Large bloodstains were found in the living room and trails of blood led to the bedroom where the body of the deceased was found. Drawers in the house appeared to have been opened and rifled.

On January 16, 1976, appellant was arrested in Fredericksburg, where he subsequently made a confession to the crime. The evidence reflects that appellant had been in possession of checks belonging to the deceased, and that for two and one-half days appellant had been forging and cashing the checks in three cities. Other evidence found at the scene of the crime connected appellant with the murder.

Appellant raises eight grounds of error in this appeal. ¹ In his first ground of error, raised for the first time on appeal, appellant alleges that the trial court failed to comply with V.T.C.A., Penal Code, Section 12.31(b) in that none of the prospective jurors were required to state under oath during voir dire that the mandatory penalty of life imprisonment or death would not affect his or her deliberations on any issue of fact. ²

Article 35.02, Vernon's Ann.C.C.P., provides that after the parties in the cause have announced ready for trial and the jurors are called,

"To those present the court shall cause to be administered this oath: 'You, and each of you, solemnly swear that you will make true answers to such questions as may be propounded to you by the court, or under its directions, touching your service and qualifications as a juror, so help you God.' "

Thus, in the course of jury selection proceedings, the jury is to be sworn before the voir dire examination begins; therefore, any statements or answers given by prospective jurors during voir dire are given under oath.

Article 12.31(b) contemplates that when a prospective juror states whether or not his deliberations will be affected by the mandatory punishment of life imprisonment or death, his answer is to be given under oath in the same manner as all answers during the voir dire examination. Thus, the statute contemplates that a juror's qualification under this statutory provision be tested during the course of the voir dire examination, along with his qualifications as to all legal matters.

The record reflects that each prospective juror was examined by the trial court as to his or her qualification under Section 12.31(b). However, appellant contends that none of the jurors were sworn before they were qualified under Section 12.31(b) and that, therefore, their answers to the statutory question were not made under oath as the statute requires. Appellant contends that for this reason he was deprived of a panel of legally qualified jurors, which constituted a violation of due process and equal protection.

Article 44.24(a), Vernon's Ann.C.C.P. provides that:

"The Court of Criminal Appeals shall presume . . . that the jury was properly impaneled and sworn . . . unless such matters were made an issue in the court below, or it otherwise affirmatively appears to the contrary from the record." (Emphasis added)

Appellant made no objection to the proceedings or the jurors at any time during the course of the trial. Neither does the record in this cause affirmatively reflect that the prospective jurors were not properly sworn before each was examined during the voir dire proceedings; the record is silent on this matter. Therefore, the statute mandates a presumption on appeal that the jury in the instant case was properly impaneled.

In Clay v. State, 505 S.W.2d 882 (Tex.Cr.App.1974), one ground of error before this Court was the failure of the trial court to administer the oath to the jury panel before voir dire examination, as required by Article 35.02, supra. Relying upon the language of Article 44.24, supra, we held that there was a presumption that the jury had been properly impaneled and sworn, since the defendant voiced no objection at trial and since the record did not affirmatively show that the oath was not given. Cf. McCloud v. State, 527 S.W.2d 885 (Tex.Cr.App.1975); Green v. State, 510 S.W.2d 919 (Tex.Cr.App.1974); Davis v. State, 507 S.W.2d 740 (Tex.Cr.App.1974); Grant v. State, 507 S.W.2d 732 (Tex.Cr.App.1974).

Appellant seems to argue that this presumption of regularity is inapplicable in the instant case. He contends that since Article 12.31(b) states that a prospective juror "shall be disqualified" from serving unless qualified under the statute, jurors cannot render a verdict in a capital case unless there has been compliance with Sec. 12.31(b). This position is erroneous. In Battie v. State, 551 S.W.2d 401 (Tex.Cr.App.1977), we reaffirmed our holding that Sec. 12.31(b) does not in itself constitute an oath to be administered in its own terms to each venireperson, but rather it merely provides one criteria by which each venireperson is to be qualified. Thus, we see no reason that the statutory presumption not apply in the instant case.

We hold that the statutory presumption on appeal that the jury was properly impaneled, and thus that they were under oath during the voir dire examination, applies in capital cases to jurors' qualifications under Sec. 12.31(b). Appellant's first ground of error is overruled.

In his second ground of error, appellant contends that he was "deprived of a fair and impartial jury trial because the verdict was the product of community pressure brought upon the jurors by the news media during the course of the trial."

The record reflects that on September 13, 1976, after appellant had testified in his own behalf but before the defense rested, the jury was recessed for lunch. Evidence in the record reflects that as the jurors filed out of the courtroom a television cameraman from a local television station was directly outside the courtroom doors, filming the outside of the courtroom. Apparently, some of the jurors were filmed during this incident. The trial judge immediately had the cameraman brought before him out of the presence of the jury, took his camera and ordered the bailiff to take the cameraman into custody. When the trial reconvened, appellant moved for a mistrial, which was denied.

At a hearing on appellant's motion for new trial, appellant's trial attorney testified that the filming incident lasted fifteen to twenty seconds. The television cameraman testified that he was filming the outside door of the courtroom when the jurors walked out; that the camera was on ten to fifteen seconds; that the bailiff immediately told him to stop the filming and grabbed him and took him before the judge; and that he was grabbed in the presence of some jurors.

Juror Salazar did not recall the incident at all. He did remember seeing a television camera; however, he did not see the filming nor did he see camera lights. He did not discuss the matter with anyone, nor did he hear it mentioned during the jury deliberations. Juror Kingery saw the camera and the bright lights. She stated that while she was "pretty sure" that some jurors wondered what was happening, she did not remember any particular discussion. She thought that there was some mention of the incident by other jurors, but it was not discussed during deliberations. Juror Robb noticed the lights but did not recall ever discussing it then or during deliberations. Juror Cordes saw the camera and the cameraman being taken into custody and heard some jurors "wonder" if the cameraman was a reporter, but never heard it discussed again. Juror Bates stated that he saw the lights and heard others mention the lights, but that it was not discussed again. Juror Ward did not see any of the incident, but heard it mentioned by others. She did not recall any discussion of the incident during deliberations. Juror Langner recalled the incident because she saw the lights. She heard someone mention the cameraman but never discussed it with the others. She did hear about the cameraman's arrest on the radio later that day, but she did not hear the incident discussed during deliberations. Juror Maxwell recalled the incident, although he did not see anything. He heard about the cameraman and the arrest, but heard no more discussion of the matter, at that time or during deliberations. Juror Ramirez saw the cameraman but never heard anything else about the incident then or during deliberations. Juror Schuchardt saw the lights, heard about the cameraman and later learned of the arrest, but did not recall further discussion of the matter. Juror Frerichs saw the confusion and lights outside of the courtroom, was told about the cameraman and assumed that she was being photographed. However, she never heard reference made to the incident after the recess. ³

Appellant contends that this one incident caused the jurors to be aware of community pressures, which deprived him of a fair and impartial jury trial. He relies upon Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) and Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct....